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April 25, 2020

Mass COVID infections thanks to mass incarceration ... but hoping it might lead to mass increase in understanding this virus

The Marshall Project is continuing to provide great COVID coverage, and its has two new pieces that spotlight the massive spread of the coronavirus among incarcerated individuals.  Here are the headlines and highlights:

From California to North Carolina, prisons that do aggressive testing are finding that infection is spreading quickly.  Take Ohio’s state prison system, which has two of the most serious outbreaks in the country. It has started mass testing of all staff and inmates at its most afflicted facilities.  Marion Correctional Institution, an hour north of Columbus, has reported four deaths, but has more than 2,000 prisoners and at least 160 staffers who tested positive for the virus.  At Pickaway Correctional Institution an hour away, at least nine prisoners have died, while more than 1,500 prisoners and 79 staffers have tested positive.

We now can see, through data collected by The Marshall Project, that thousands of prisoners have caught the illness, and the number of cases has grown more than threefold in the last week alone.  Thousands more workers, correctional officers and medical staff have been sickened.  And more than 140 people — most of them incarcerated — have died thus far.

It is hardly surprising that COVID spreads wildly in a prison setting where social distancing is impossible and effective hygiene is always challenging.  But I so badly want to hope that the fact that such large populations are now testing positive might enable us to gain a greater understanding of this devilish virus.  Encouragingly, this new USA Today article, headlined "Mass virus testing in state prisons reveals hidden asymptomatic infections; feds join effort," suggests it might:

But 39 inmates testing positive for the coronavirus at the Neuse state prison in Goldsboro, North Carolina, was still cause for alarm.  Of the more than 50 detention centers across the state, none had more infections at the time than Neuse, prompting officials to take the extraordinary step of testing all 700 prisoners at the medium security facility near Raleigh.

Within a week, infections had surged to 444.  Perhaps even more revealing: More than 90% of the newly diagnosed inmates displayed no symptoms, meaning that the deadly virus could have remained hidden had the state followed federal guidelines that largely reserve testing for people displaying common symptoms, such as fever and respiratory distress.  “We would never have known,” North Carolina Department of Public Safety spokesman John Bull said.

Even as vulnerable prison systems have ramped up scrutiny of inmates and staffers with broad quarantines and elaborate contact tracing investigations, increased testing is proving just as crucial in assessing the virus’ spread within detention systems as it is in the free world.  Mass testing at three state prisons in Ohio has yielded results similar to North Carolina's, with officials suggesting that the strategy and findings could have broad implications, not just for containing outbreaks in detention centers but in making larger decisions about when states should re-open for business and loosen social distancing restrictions.

I am so saddened that COVID has turned our prisons and jails into human petri dishes, and I am so troubled even thinking about incarcerated populations serving as some kind of experimental "control" group in continuing research.  Nevertheless, at a time where it seems we still know so little about COVID, I hope our public health experts and researchers can, in an ethically appropriate way, effectively use the new infection data coming out of our nation's many prisons to help increase our understanding of this virus in order to better prevent its spread and better treat those who contract it.

UPDATE: Here is also a lengthy Reuters piece, headlined "In four U.S. state prisons, nearly 3,300 inmates test positive for coronavirus -- 96% without symptoms," which includes these passages:

As mass coronavirus testing expands in prisons, large numbers of inmates are showing no symptoms. In four state prison systems — Arkansas, North Carolina, Ohio and Virginia — 96% of 3,277 inmates who tested positive for the coronavirus were asymptomatic, according to interviews with officials and records reviewed by Reuters. That’s out of 4,693 tests that included results on symptoms.

The numbers are the latest evidence to suggest that people who are asymptomatic — contagious but not physically sick — may be driving the spread of the virus, not only in state prisons that house 1.3 million inmates across the country, but also in communities across the globe. The figures also reinforce questions over whether testing of just people suspected of being infected is actually capturing the spread of the virus. “It adds to the understanding that we have a severe undercount of cases in the U.S.,” said Dr. Leana Wen, adjunct associate professor of emergency medicine at George Washington University, said of the Reuters findings. “The case count is likely much, much higher than we currently know because of the lack of testing and surveillance.”...

Reuters surveyed all 50 state prison systems. Of the 30 that responded, most are only testing inmates who show symptoms, suggesting they could be vastly undercounting the number infected by the coronavirus.

Florida and Texas, whose inmate populations are bigger than Ohio’s, report a combined total of just 931 cases — far fewer than the 3,837 inmates who tested positive in Ohio. New York, the epicenter of the U.S. outbreak, has reported 269 positive cases among 51,000 inmates. All three states are testing only symptomatic prisoners.

“Prison agencies are almost certainly vastly undercounting the number of COVID cases among incarcerated persons,” said Michele Deitch, a corrections specialist and senior lecturer at the University of Texas. “Just as the experts are telling us in our free-world communities, the only way to get ahead of this outbreak is through mass testing.”...

“We know mass testing is going to make our numbers spike and might make us look bad,” said Chris Gautz, spokesman for the Michigan Department of Corrections. “But I don’t think there’s another prison system in the country that doesn’t have large numbers. They just might not be testing as rigorously as we are.”

April 25, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

"Protecting Rural Jails From Coronavirus"

The title of this post is the title of this new memorandum from Data for Progress authored by Aaron Littman, Lauren Sudeall and Jessica Pishko. Here is its executive summary:

In the summer of 2015, Louisiana’s LaSalle Parish Sheriff’s Department arrested 19 people in a covert drug operation dubbed “Operation Fielder’s Choice.”  One of those people was Charles Keene, who allegedly sold an informant two pills for $20 . For this, he was arrested and, because Keene could not afford bail, he was jailed until trial.

LaSalle is a rural county and its biggest town, Jena, has a population of 3,000.  Because the public defender’s office was both underfunded and had conflicts with Keene’s case — two of the public defenders had represented the informant in previous proceedings — Keene was forced to wait in jail as his trial date faced postponement after postponement. Charles Keene believed he was innocent and hoped to challenge the evidence used against him.  But, the judge wouldn’t proceed until Keene was represented by counsel.  For months, Keene wrote letters asking the judge to put his case on the calendar.  The trial didn’t happen until 2017.

For two years, Charles Keene was incarcerated in the county jail where he faced the deprivations of confinement, a lack of adequate medical care, and the near-loss of custody of his children.  Through his case is one that could happen anywhere in the country, the problems Keene faced are representative of the challenges rural criminal legal systems face.

While national headlines have focused on the spread of coronavirus in large, urban jails, the same attention is now turning to America’s rural communities, where the virus is gaining traction through community spread.  Although the largest outbreaks thus far have been in large jails, like those in Chicago, Houston, and New York, it’s quite clear that rural regions are not going to avoid the ravages of this disease. The question is how these communities will respond.

Rural communities have certain traits that make them particularly vulnerable in a pandemic.  On the whole, people living in rural regions are poorer, older, and less healthy. One in three rural counties has a poverty rate over 20%. More than half of all births at rural hospitals are covered by Medicaid.  Rural communities are quickly losing hospitals and health care providers.  Small newspapers are closing across the heartland, and internet access in rural areas is often limited, so rural residents may not have accurate information about the pandemic or how to best respond.

Many of these concerns are amplified in rural jails.  People detained in rural jails are likely to be there because they cannot afford cash bail.  Judges in rural courts often send people to jail for drug possession, in part because there are few diversion programs. Given the paucity of medical providers and other social services in rural areas, the criminal legal system is often used to address a range of social, emotional, and financial problems that elsewhere may be handled outside of the court system through community treatment or other programs. And people inside the jails may have prior substance use or other medical problems that are exacerbated in a pandemic.

Perhaps most alarming, rural jails are frequently located in counties that lack hospital capacity to handle the coronavirus pandemic.  Our analysis shows that a significant percentage of people being held in jails — 12% nationally and over a third in some states—are housed in counties without any ICU beds.  This could have disastrous consequences should an outbreak occur in a jail located in a rural community without access to critical care resources.

The need for reform in both rural and urban jails is urgent.  This report discusses specific challenges and responses to decarceration in rural communities in light of the coronavirus.

April 25, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

April 24, 2020

Some exhausted musings on the so-called "exhaustion" procedural requirement for sentence-reduction motions under § 3582(c)(1)(A)

I tend to start many mornings these COVID-tainted days on Westlaw checking out new district court opinions responding to motions by persons in federal prison seeking a sentence reduction under § 3582(c)(1)(A).  A dozen or more new opinions appear each day now, but many deny relief simply on the basis of the so-called "exhaustion" procedural requirement in § 3582(c)(1)(A).  A few weeks ago, I discussed in this post the sloppy Third Circuit panel dicta on this issue in Raia, and it is frustrating (but not surprising) that many district courts nationwide are now citing Raia when rejecting motions under § 3582(c)(1)(A) on this procedural ground.  At the end of another long week, I wanted to explain why it seems to me misguided, on various grounds, to interpret this "exhaustion" procedural requirement as an absolute bar to courts considering the merits of sentence-reduction motions under § 3582(c)(1)(A). 

First, the statutory basics. The text now of § 3582(c)(1)(A), after amendment by the FIRST STEP Act (in bold), provides: "the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment..."  In other words, this text provides that a sentence reduction motion can be acted upon by the court (1) immediately if brought by BOP, or (2) as soon as a defendant requests such a motion and that request is formally/finally denied by BOP or 30 days has lapsed, "whichever is earlier." 

Based on the text alone, I can understand why courts read this provision as precluding consideration of a prisoner's sentence-reduction motion until at least 30 days after a BOP request is made by the defendant.  As I explained in my Raia post, this provision is pretty clearly not jurisdictional because the language and structure make it much more what the Supreme Court calls a "nonjurisdictional claim-processing rule."  Fort Bend County v. Davis, No. 18-525 (S. Ct. June 3, 2019) (available here).  Still, even as a claim-processing rule, the text is seemingly clear and mandatory: "The statute provides no exceptions to the exhaustion requirement, and the Supreme Court has clearly stated that courts may not manufacture exceptions where they do not exist." United States v. Miamen, No. 18-130-1 WES, 2020 WL 1904490 (D RI Apr. 17, 2020).  Further, as another court has put it: "the administrative exhaustion requirement for compassionate release motions serves important policy functions [because the] BOP is often in the best position to evaluate the scope of an inmate’s medical condition, the adequacy of the release plan, and any danger posed to the community if they are released."  United States v. Gamble, No. 3:18-cr-0022-4(VLB), 2020 WL 1955338 (D Conn Apr. 23, 2020).

Though this basic textual and policy analysis is not misguided, it largely looks past all the reasons that Congress in the FIRST STEP Act enabled district judges to consider the merits of a sentence reduction under § 3582(c)(1)(A) without awaiting even full consideration of a request by BOP.  For years, BOP failed to use its authority to seek reductions even in the most compelling of cases, and Congress decided to district courts could and should assess sentence-reduction requests without BOP serving as any kind of gatekeeper.  Critically, with the FIRST STEP Act revision, Congress did not actually require defendants to exhaust the BOP motion-request process before turning to the courts — which would have made sense if Congress still trusted the BOP process to some extent; Congress added, critically, that a sentence-reduction motion could be considered after "the lapse of 30 days from the receipt of such a request."  Put another way, this statute actually does have an express exception to a true exhaustion requirement in the form of the "lapse of 30 day" provision.

But, so the argument might go, even though Congress did create an exception to BOP exhaustion in the form of a "30 day" lapse requirement, why should courts even consider short-circuiting that express timeline?  Well, in the midst of a pandemic, a timeline intended by Congress to give a prisoner quick access to the court sensibly can and should be sped up consistent with the overall goals of § 3582(c)(1)(A).  In the word of one court:  "The question therefore becomes whether applying equitable exceptions to section 3582(c)(1)(A) would be incompatible with Congressional intent .... [and] this Court agrees with Judge Rakoff that 'Congress cannot have intended the 30-day waiting period ... to rigidly apply in the highly unusual situation in which the nation finds itself today'."  United States v. Bess, No. 16-cr-156, 2020 WL 1940809 (WDNY Apr. 22, 2020). 

Especially important here seems to be a consideration emphasized in this New York Times editorial: "Releasing these prisoners during this crisis is not just an act of mercy to protect prisoners’ health, [it also serves] the health of the prison staff.  Fewer sick inmates means less strain on the already burdened prison hospital system."  Does it really make sense to believe Congress would want courts to refuse to consider (for a few weeks) a request for a sentence reduction when any delay will further imperil prison staff as well as inmates?  In normal times, the procedural requirement of § 3582(c)(1)(A) shows some respect for BOP officials; in COVID times, rigid application may inadvertently cost the lives of some BOP officials.

Last but not least, at a time when at least 24 federal inmates have died from COVID and in a week in which a federal judge has found that federal inmates in one facility "have demonstrated a likelihood of success on the merits" of an Eighth Amendment claim, an equitable exception to the procedural requirement of § 3582(c)(1)(A) arguably has a strong constitutional foundation.  I say this because, in order to prevail substantively, a defendant seeking a sentence reduction under § 3582(c)(1)(A) must make the case that "extraordinary and compelling reasons warrant" a reduction with consideration given also to "the factors set forth in 3553(a)."  In other words, the only persons who are ultimately impacted by so-called "exhaustion" requirement are those who can make a truly compelling case to a federal judge that, consistent with congressional sentencing purposes, a shorter sentence is now justified.  Amidst a pandemic which has already killed dozens of federal prisoners, to deny deserved substantive relief on questionable procedural grounds strikes me as quite constitutionally suspect. 

April 24, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Feds again shift guidance on prisoner releases due to coronavirus"

The title of this post is the headline of the latest Politico article trying to make sense of the crazy gyrations of federal authorities dealing with prisoners releases.  Here are excerpts:

Federal prison authorities have again changed the criteria used to consider inmates for early release, with the latest move broadening the set of prisoners eligible to be sent home on account of the dangers posed by the coronavirus.

Just days after many inmates who had been in pre-release quarantine were stunned to be told they did not qualify due to a policy change, the Bureau of Prisons issued new guidance saying at least some of those prisoners could be considered for home confinement.

The new standard opens the door to such releases for prisoners who have served at least 25 percent of their sentences and who have less than 18 months remaining on their term. Earlier in the week, prison officials and federal prosecutors told inmates and judges that the Bureau of Prisons was only considering home confinement for inmates who had served at least half of their sentence.

Inmate advocates said the effect of the change would be modest, permitting the release of about 200 additional prisoners serving relatively short federal sentences. Authorities reported Thursday that about 1,500 inmates were sent to home confinement as the Covid-19 crisis escalated, out of about 171,000 federal prisoners.

The latest revision could be of help to some high-profile inmates, but disappointing to others. Under the new criteria, a former personal lawyer to President Donald Trump, Michael Cohen, could be eligible for home confinement next month on the three-year sentence he is serving. However, former Trump campaign chairman Paul Manafort — serving a seven-and-a-half-year prison term — would likely not qualify for home confinement for another year or more.

Kevin Ring, of the criminal justice reform group FAMM, said he welcomed the latest change, but said the abrupt U-turns were cruel to inmates and their families. “This awful episode will not be resolved until the hundreds of people who had their home confinement dates revoked are sent home, too,” he said....

One federal prosecutor told a judge in Manhattan Wednesday that she was unable to comply with an order to detail the standards due to “uncertainty” over the policies in force. On Thursday, the government submitted an affidavit from a federal prison official in Miami, Jennifer Broton, describing the shift to the new standard allowing home confinement for inmates who have completed as little as 25 percent of their sentences, if they have 18 months or less left to serve.  Those who’ve served 50 percent and have more than 18 months left can still be considered, she said.  Broton stressed that those standards simply set priorities for the agency and “are subject to deviation in BOP’s discretion in certain circumstances and are subject to revision as the situation progresses.”...

Separately, federal prison officials announced Thursday that they are ramping up what had previously been scant testing of inmates for Covid-19.  The Bureau of Prisons said it received 10 Abbott rapid testing machines and 264 test kits on April 10 and expects to receive another 10 machines next week.  “The deployment of these additional resources will be based on facility need to contain widespread transmission and the need for early, aggressive interventions required to slow transmission at facilities with a high number of at-risk inmates such as medical referral centers,” the statement said.

The announcement followed an injunction issued Wednesday by a federal judge requiring transfer or release of “vulnerable” inmates at a federal prison in Lisbon, Ohio, that has seen a serious outbreak of the virus, including the deaths of six prisoners. U.S. District Court Judge James Gwin called testing there “shockingly limited” and “paltry” in the face of signs of widespread infection. He noted that the prison, known as Elkton, had received fewer than 100 tests while a nearby state prison of a similar size had done about 4,000 tests.

Two federal prisons in New York City, the biggest hotspot for infections in the U.S., reported Thursday they have tested a total of 19 inmates since the outbreak began. Eleven were positive. Thus far, 620 federal inmates have tested positive for the coronavirus and 24 have died. The number of reported prisoner infections could rise sharply in the coming days as testing increases, the bureau said.

Federal prosecutors opposed the order to release or transfer Elkton inmates, but no appeal was immediately filed. “We are reviewing the opinion and assessing next steps,” a Bureau of Prisons spokeswoman said Thursday.

I believe this BOP memo dated April 22 might be the "new guidance" referenced in this Politico piece, but these days I have largely given up trying to figure out what the heck is going on in the federal system.

A few of many prior related posts:

April 24, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

April 23, 2020

In praise of (split) Fourth Circuit panel prioritizing sentencing fitness over finality

A few years ago, I wrote this article, titled "Re-Balancing Fitness, Fairness, and Finality for Sentences," in which I urged policy-makers and judges to be "less concerned about sentence finality, and to be more concerned about punishment fitness and fairness, when new legal developments raise doubts or concerns about lengthy prison sentences."  The article came to mind as I reviewed a new (split) panel ruling from the Fourth Circuit in US v. Chambers, No. 19-7104 (4th Cir. Apr. 23, 2020) (available here).  Here is how the majority opinion gets started:

Erroneously sentenced as a career offender, Brooks Tyrone Chambers is currently serving an almost 22-year prison sentence on a pre-2010 crack-cocaine offense.  In 2019, he moved to reduce his sentence to time served under the First Step Act.  Because the First Step Act gives retroactive effect to sections 2 and 3 of the Fair Sentencing Act of 2010, his statutory minimum would drop from 20 years to 10 years.  In his motion, he asked the district court to apply retroactive intervening case law, under which he would not be a career offender.  Without the enhancement, Chambers’s Guidelines range would also drop to 57 to 71 months; with it, his Guidelines range would remain the same — 262 to 327 months.

The district court determined that Chambers was eligible for a sentence reduction under the First Step Act, but it proceeded to perpetuate the career-offender error when recalculating the Guidelines.  Nor did it exercise its discretion to vary downward.  Instead, the court denied Chambers’s motion to reduce his custodial sentence, though it granted the motion as to his supervised release term.  Because the First Step Act does not constrain courts from recognizing Guidelines errors, and because the district court seemingly believed that it could not vary from the Guidelines range to reflect post-sentencing information, we vacate the district court’s resentencing order.  Additionally, we now hold that any Guidelines error deemed retroactive, such as the error in this case, must be corrected in a First Step Act resentencing.

Here is how the dissent gets started:

Modification of a final sentence requires express congressional authorization.  The majority’s decision sidesteps this statutory imperative and instead reasons that district courts are free — and here, required — to modify final sentences unless specifically prohibited from doing so.  Congress enacted Section 404 of the First Step Act to retroactively reduce disparities between the crack and powder cocaine sentencing schemes; the statute is silent about other changes to a defendant’s final sentence.  The majority finds in this silence an implicit grant of authority to retroactively correct Sentencing Guidelines errors based on intervening law, an authority this Court has rejected in the context of collateral challenges to final sentences.  I would instead conclude that 18 U.S.C. § 3582(c)(1)(B) authorizes only the modification “expressly permitted” by the First Step Act, which does not include reevaluating a defendant’s career-offender Guidelines designation in light of a post-sentencing change in the law.

Since a judge at any full resentencing is now obligated to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth" in 18 USC 3553(a)(2), it really ought not matter too much what sentencing range gets spit out in a guideline calculation.  But because many judges still focus a lot on guideline calculations, I am pleased to see the majority here is eager to make sure the district court is focused on a correct guideline calculation.

April 23, 2020 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

According to BOP reporting, federal prison population now shrinking about 1,000 persons per week

Every Thursday morning, one can see at this webpage an official refreshed count of the total number of federal inmates as calculated weekly by the Federal Bureau of Prisons.  As noted before, that page also has data on the total number of federal inmates for each fiscal year going back to 1980.   For some numerical context, these data show that in FY1995 the federal prison population first hit six digits and stood at 100,958; in FY2007, federal prison population had nearly doubled to 200,020; and in FY2013, the federal prison population hit a modern high of 219,298.

After 2013, a range of political, legal and practical realities helped create a new and steady trend of reduced federal incarceration levels.  Retroactively applied reductions in crack sentences and then in all drug sentences contributed, but the most important factor may have been fewer federal prosecutions: data here from the US Sentencing Commission shows roughly 20,000 fewer offenders being sentenced in the federal system between 2011 (when 86,201 persons were sentenced in federal courts) and 2017 (when "only" 66,873 persons were sentenced).  Yet, starting in 2018, the number of offenders being sentenced in the federal system started to tick back up; in 2019, according to the USSC, there were 76,538 sentenced federal offenders.  New good-time credit flowing from the FIRST STEP Act and other reforms in that Act helped thwart a complete reversal in the downward trends of the total number of persons in federal prison.  I noted in this post back in July 2019 that the federal prison population had dropped under 180,000 prisoners for the first time since back in FY 2003.

Though we are now really only a little more than a month into our COVID world, it is not too early to notice how the virus and reactions thereto is now driving federal prison populations down even more.  Specifically, here are a few recent dates and BOP population counts:

March 19: 175,500 persons reported by BOP as "Total Federal Inmates"

April 2:    174,837 persons reported by BOP as "Total Federal Inmates"

April 9:    173,686 persons reported by BOP as "Total Federal Inmates"

April 16:  172,349 persons reported by BOP as "Total Federal Inmates"

April 23:  171,434 persons reported by BOP as "Total Federal Inmates"

After a slow start, we have now seen over the last three weeks an average drop in federal inmates as reported by BOP of around 1,100 persons.  And we are now at the lowest federal prison population since 2002.

Though pleased to see this trend, I am inclined to take a "glass half empty" perspective on these numbers.  For starters, these numbers include the 24 federal inmate deaths that BOP has officially reported, and I cannot help but wonder if they also reflect some (large?) number of sick federal inmates who have been moved to medical facilities outside of the BOP network. Moreover, even a 4000-person reduction in the federal prison population from March 19 to April 23 represents less than a 2.5% overall reduction at a time when there likely are tens of thousands of vulnerable persons confined in high-risk federal prison environs.  (I suggested in this post right after Attorney General Barr issued his first restrictive home-confinement memo that more than 10,000 might be eligible for home confinement under even those guidelines.)

Reflecting on these numbers raises some other interesting issues and questions.  The BOP's COVID-19 Update page, as of midday April 23, is reporting that "the BOP has placed an additional 1,440 inmates on home confinement."  That number represents only about one third of the 4000-person reduction in the federal prison population from March 19 to April 23, and so I am left to speculate about other factors in play here.  I have been noting many sentence-reduction motions being granted by federal judges, but that likely accounts for only a few hundred additional releases.  More grants of pretrial release may also be part of the story, but I also wonder about the impact of (a) deferred prison report dates and (b) reductions in the number of new sentencings and/or new persons getting sentenced to prison.  

Remarkable times.

A few of many prior related posts:

April 23, 2020 in Data on sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Great new Politico Magazine feature on "Justice Reform: The Decarceration Issue"

The Politico Magazine has a bunch of great new articles on criminal justice reform issued collected here under the heading "Justice Reform: The Decarceration Issue."  Here are the lengthy pieces under this heading with their full headlines:

Biden vs. Trump: Who’s the Actual Criminal Justice Reformer?: Suddenly, both the Republican and Democrat promise big changes. We matched their policies head-to-head, and asked experts for a reality check.

A Republican Crusader Takes on Oklahoma’s Prison Machine: In the state that locks up more of its citizens than any other, a former politician is using the ballot box—and some surprising alliances—to nudge his own party toward change.

How Oklahoma Popped Its Prison Bubble, In Charts: In 2016, Oklahoma incarcerated more people per capita than any other state. Then it began to bring those numbers down.

New York Tried to Get Rid of Bail. Then the Backlash Came. A national movement stalled by backlash politics gets some new wind at its back.

April 23, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Recommended reading, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

April 22, 2020

Federal Judge orders BOP to find ways to transfer prisoners "out of Elkton through any means" in the coming weeks

As reported in this ACLU press release, "Today, Judge James S. Gwin of the United States District Court of the Northern District of Ohio granted a preliminary injunction ordering Elkton officials to identify, within one day, all members of the subclass of medically vulnerable prisoners encompassed by the class action habeas petition filed by the ACLU of Ohio and the Ohio Justice and Policy Center on April 16. Following identification, Elkton officials are ordered to evaluate the prisoners’ eligibility for transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two weeks. Elkton officials must quarantine prisoners for 14 days prior to transfer out of Elkton." Here is more from the press release:

“Countless lives will be saved as a result of this order. Even since we filed our class action the death toll at Elkton has doubled. Judge Gwin was absolutely correct in recognizing the dire situation at Elkton and we are eager to assist and facilitate the release of the members of the medically vulnerable class,” said David Carey, Senior Staff Attorney for the ACLU of Ohio.

In undertaking the evaluation, the judge further rules that older prisoners with heart, pulmonary, diabetes or immunity risks should receive priority review, and that any members of the class action transferred out of Elkton cannot return to the facility until the thread of the virus is abated or until a vaccine is available.

“People living in prison have Constitutional rights, too. This order will help ensure the well-being of prisoners, staff, and the surrounding community, while preserving our Constitutional obligations,” added Joseph W. Mead, Cooperating Attorney for the ACLU of Ohio.

The full 21-page order from Judge Gwin is available here, and here is the order's conclusion:

The Court orders the Respondents to identify, within one (1) day all members of the subclass as defined in this Order.  Respondents must identify in the list each subclass member’s sentencing court and the case number of their underlying criminal conviction.

Following identification, the Court orders Respondents to evaluate each subclass member’s eligibility for transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or nontransfer furlough within two (2) weeks.

In undertaking this evaluation, Respondents will prioritize the review by the medical threat level.  For example, older inmates with heart, pulmonary, diabetes or immunity risks should receive review priority over subclass members who are younger.

Subclass members who are ineligible for compassionate release, home release, or parole or community supervision must be transferred to another BOP facility where appropriate measures, such as testing and single-cell placement, or social distancing, may be accomplished.  In transferring subclass members, Respondents must continue to comply with BOP policy of quarantining inmates for 14 days prior to transfer out of Elkton.

Any subclass members transferred out of Elkton may not be returned to the facility until the threat of the virus is abated or until a vaccine is available and Elkton obtains sufficient vaccine supplies to vaccinate its population, whichever occurs first.

UPDATE: This Politico article discusses this ruling by Judge Gwin along with another ruling from Louisiana that refused to grant relief to prisoners in another federal institution with many infected inmates.  This piece is fully headlined "Judge orders transfer or release for some inmates at virus-wracked Ohio federal prison; But another court refuses to act as 'super-warden' for hard-hit U.S. prison complex in Louisiana."  Here are excerpts:

A judge has ordered the release or transfer of hundreds of elderly and vulnerable inmates at a federal prison in Ohio that has seen a particularly deadly and widespread outbreak of the coronavirus.

Although federal courts have been flooded in recent days with release and resentencing requests in individual cases, the ruling Wednesday from U.S. District Court Judge James Gwin appeared to be the first that could lead to a group release of federal convicts as a result of the ongoing Covid-19 pandemic....

The decision from the Cleveland-based Gwin came the same day a federal judge in Louisiana rejected a similar class-action, habeas corpus case brought on behalf of prisoners at a hard-hit federal prison complex in Oakdale, La.  U.S. District Court Judge Terry Doughty said federal statutes and legal precedents foreclosed the court from offering the same relief Gwin granted.

Doughty, an appointee of President Donald Trump, also sounded disinclined to second guess the decisions of the Bureau of Prisons.  “Such a designation and/or classification falls squarely within BOP’s authority and outside the purview of this Court,” Doughty wrote. “To rule otherwise would make this Court a de facto ‘super’ warden of Oakdale.”

Oakdale is suffering from the deadliest Covid-19 outbreak in the federal prison system, with seven inmates having expired.  Federal statistics show 21 prisoners and 22 staffers there confirmed as infected.

April 22, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Another round of recent COVID-influenced grants of federal sentence reductions using § 3582(c)(1)(A)

In this post late last week, I noted ten COVID-influenced grants of sentence reductions using § 3582(c)(1)(A) that showed up on Westlaw.  (I also once again noted my belief that my Westlaw listings surely do not represent all sentence reductions being granted these days).  Though today we are now just mid-week (with Westlaw only showing ruling through April 21), I have spotted enough new grants of sentence reductions that I figured another listing was in order: 

Poulios v. United States, No. 2:09-cr-109, 2020 WL 1922775 (ED Va. Apr. 21, 2020)

United States v. Scparta, No. 18-cr-578 (AJN), 2020 WL 1910481 (SDNY Apr. 20, 2020)

United States v. Atwi, No. 18-20607, 2020 WL 1910152 (ED Mich Apr. 20, 2020)

United States v. Gileno, No. 3:19-cr-161-(VAB)-1, 2020 WL 1916773 (D Conn. Apr. 20, 2020)

United States v. Turner, No. 3:09-cr-00018, 2020 WL 1917833 (WD Va. Apr. 20, 2020)

United States v. Asaro, No. 17-cr-127 (ARR), 2020 WL 1899221 (EDNY Apr. 20, 2020)

United States v. Joling, No. 6:11-cr-60131-AA, 2020 WL 1903280 (D Ore. Apr. 17, 2020) 

United States v. Atkinson, No. 2:19-CR-55 JCM (CWH), 2020 WL 1904585 (D Nev. Apr. 17, 2020) 

Prior recent related posts:

April 22, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"COVID-19 Model Finds Nearly 100,000 More Deaths Than Current Estimates, Due to Failures to Reduce Jails"

The title of this post is the title of this new ACLU report, and here are some excerpts from the first few pages of the intricate 12-page document:

Models projecting total U.S. fatalities to be under 100,000 may be underestimating deaths by almost another 100,000 if we continue to operate jails as usual, based on a new epidemiological study completed in partnership between academic researchers and ACLU Analytics.  That is, deaths could be double the current projections due to the omission of jails from most public models.  Numbers used by the Trump administration largely fail to consider several factors that will explosively increase the loss of life unless drastic reforms are adopted to reduce the nation’s jail populations....

As a result of the constant movement between jails and the broader community, our jails will act as vectors for the COVID-19 pandemic in our communities.  They will become veritable volcanoes for the spread of the virus.  The spread of COVID-19 from jails into the broader community will occur along two vectors that are ignored in typical models:

1. Churn of the jail population — individuals are arrested, sent to jail, potentially exposed to COVID-19, released on their own recognizance, post bail, or are adjudicated not guilty and are subsequently released. Upon release, the virus will spread through their families and communities unless the individual is quarantined.

2. Jail staff — staff come to work each day and are exposed to COVID-19, then return home and infect their families and communities.  This vector applies to jails, prisons, and detention centers.  There are ~420,000 people who work in jails and prisons in the U.S.

Unfortunately, the radical approaches adopted in broader society to reduce other high-density transmission hubs — the closure of schools, the closure of non-essential businesses, and the enactment of stay-at-home orders — have not been emulated with regard to our jails.  Some states have begun to see a reduction in their jail populations, such as Colorado, where there has been a 31 percent reduction, potentially saving ~1,100 lives (25% of projected deaths in the state).  However, all states need to do more, and most states have failed to take any steps to stem the impact of the COVID-19 pandemic in jails and the broader community.

April 22, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

April 21, 2020

FAMM writes to DOJ and BOP to spotlight and lament "ineptness, if not the downright cruelty displayed by the BOP"

FAMM President Kevin Ring today sent this potent three-page letter to US Attorney General William Barr and BOP Director Michael Carvajal.  I recommend the letter in full, and here are some key paragraphs:

Yesterday, we received reports from dozens of people around the country that their loved ones, quarantined with the explicit understanding that they would move to home confinement in two weeks, were instead returned to general population and told that the rules had changed and that they were no longer going home.  At some facilities, family members had already arrived to pick up their loved ones whose quarantine period was ending.  These families were turned away. Many more families received phone calls from crying loved ones informing them that their release date had been revoked because of the abrupt change in rules.

If this were the first time something like this had happened, I might have found it heartbreaking but also a sign that the BOP was still finding its way in dealing with this crisis. But, because we have received identical accounts on multiple occasions over the past couple of weeks, I find myself baffled at the ineptness, if not the downright cruelty displayed by the BOP.  Families with loved ones in BOP facilities are already worried and anxious because of the rising number of COVID-19 infections and deaths.  They are desperate to get their loved ones home, especially those who are medically vulnerable.  To have the promise of early release snatched away under these circumstances is simply inexcusable.  They deserve to know what is happening.

Even before yesterday’s outrageous bait-and-switch, we were growing concerned with the BOP’s response to this crisis.  We have received numerous reports about case managers and counselors giving incorrect information and contradictory answers to people exploring early release options....

Tens of thousands of families across the country are deeply and understandably frightened for the health and safety of their incarcerated loved ones.  The people inside BOP’s facilities are confused, frightened, and vulnerable.  They deserve maximum transparency from the BOP.  Above all, they deserve that you act as Congress intended in the CARES Act: to protect vulnerable people in your care or send them home.

UPDATE: Politico has this new piece providing some more details under the headline "Trump administration reverses prisoner coronavirus release policy, advocates say."  Here are excerpts:

A coronavirus-related policy shift that could have cleared the way for thousands of federal prisoners to be sent home early was abruptly reversed this week, according to friends and family members of inmates.

Prison officials indicated earlier this month that inmates who had served less than half their sentences could still be considered for early release to limit the spread of infection behind bars. However, inmates in various prisons who had been put into prerelease quarantine almost two weeks ago were advised Monday by authorities that the policy had changed, lawyers and associates said. Officials would not waive a requirement that prisoners must have completed 50 percent their sentence to be eligible for early release during the pandemic, the inmates were told.

It was not immediately clear whether the apparent reversal applied across the board or if officials might still waive the policy in the places where the virus has had the most severe impact.

Still, the decision could dash the hopes of several well-known prisoners seeking release from federal custody, including former Trump campaign chairman Paul Manafort and former Trump personal lawyer Michael Cohen. Neither man has served half his sentence....

Bureau of Prisons spokespeople did not respond to requests for comment for this report....

While the initial set of criteria for home confinement included a requirement that inmates had completed half of their sentences, prison officials were told by their superiors on April 9 that rule was expected to be dropped. The decision was cited in a declaration a Bureau of Prisons staffer submitted in connection with a lawsuit challenging the detention of inmates at a federal prison complex in Oakdale, La., that has suffered a serious outbreak of the virus.

That guidance led prisoners at a number of federal facilities nationwide to be put into prerelease quarantine around that date, according to family members of inmates. Some family and friends were making plans to pick up their loved ones this week. Others had purchased air tickets to return home, only to be told Monday that the expected releases had been scuttled.

“They just posted a new BOP Bulletin a few minutes ago, reversing the Barr decision and requiring that those released to home confinement must have served 50% of their sentence,” Stephen Donaldson, son of an inmate at a prison in Georgia, wrote in an email to POLITICO. “I was hoping to have my father home. He tells me a number of other inmates had started the quarantine pre release and then were told of the reversal.”

April 21, 2020 in Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Which states are doing best (or doing worst) responding to COVID incarceration challenges?

The question in the title of this post is prompted by this new Baltimore Sun article headlined "Maryland said it has released 2,000 inmates from prisons and jails to slow spread of the coronavirus."  Here are excerpts:

The Maryland Department of Public Safety and Correctional Services announced Monday that it has released 2,000 inmates from its jails, prisons and other detention facilities over the past five weeks in an effort to reduce the spread of the coronavirus behind bars.

The announcement comes one day after Maryland Gov. Larry Hogan signed an executive order designed to speed up the release of at least 700 men and women from correctional facilities across the state.  The order speeds up processing of inmates already eligible to be released within the next four months and accelerates the processing of inmates eligible for home detention.

The corrections department offered no details about when the releases began, how many had been freed in the past week or why the department remained quiet amid an aggressive push from local leaders in Baltimore, public health officials and prisoner advocates calling on Hogan to reduce crowding in the state’s prisons.  Department spokesperson Mark Vernarelli said in a statement that the releases were made possible by “leveraging the acceleration and placements" into pretrial supervision and releasing others during the booking process. The department also accelerated processing releases through the Parole Commission and Home Detention Placement program.

As of Friday — the last day a figure was reported — Maryland said it had 136 cases of COVID-19 in the correctional system, with the Jessup Correctional Institution having 40, the highest number in the system. The figure includes inmates, correctional officers and contractual employees. One inmate in his 60s has died, according to the department.

Maryland Court of Appeals Chief Judge Mary Ellen Barbera last week encouraged the release of inmates who were most susceptible to the virus and who pose no threat to public safety.  Baltimore City State’s Attorney Marilyn Mosby had been leading the charge for early release of large numbers of prisoners....  Nearly 200 doctors, professors and staff at Johns Hopkins University sent a similar request to Hogan on March 23, saying the governor’s “inaction on this issue is putting the lives of Marylanders at risk."

This Prison Policy Initiative page indicates that Maryland has roughly 30,000 persons locked up in its state and local facilities, so a release of 2,000 persons would still only involve shrinking its incarcerated population by less than 7%.  And, notably, this article suggests many getting released were already on their way out the (barred) door anyway.  Nevertheless, I am still inclined to give the Free State some credit for living up to its nickname in this remarkable new era.

I know a number of other states have been trying in various way to "get ahead" of COVID prison problems.  For example, as noted here, a few weeks ago Pennsylvania and New Jersey governors issued executive orders to enable temporary prison releases.  This new local article reports on Iowa's plans to release some prisoners to minimize spread of COVID-19; this article from last week reports on Washington state's plan to release nearly 1,000 nonviolent prison inmates early to limit COVID-19 spread.  The UCLA Covid-19 Behind Bars Data Project also has prison release data indicating sizable releases in California, Illinois and Kentucky, and I am sure there are more proactive states out there.

At the same time, it is clear that a number of states have been quite slow to respond to COVID incarceration challenges.  I am not going to name names in this post, but I welcome and encourage others doing so in the comments.  I also wonder if anyone thinks it might be useful to try to do some kind of "ranking" of states in this arena.

April 21, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Chad Marks, high-profile "prison lawyer" subject to extreme stacked 924(c) term, gets his sentence reduced from 40 to 20 years via § 3582(c)(1)(A)

Readers may recall this post from last year about a remarkable four-page order entered in US v. Marks, No. 03-CR-6033 (WDNY March 14, 2019).  I am happy to have an update to this story.  First some background, then the latest chapter.

Chad Marks' case has been followed for years by clemency advocates like Amy Povah, and this CAN-DO profile page has lots of background materials about his case, his requests for clemency, and all the positive work he has done since being federally sentenced years ago to 40 mandatory prison years due to stacked § 924(c) firearm charges.  The March 2019 order by US District Judge David Larimer, which reviewed the unfairness of Marks' sentence and his extraordinary good works in prison, urged the local federal prosecutor to "carefully consider exercising his discretion to agree to an order vacating one of Marks two Section 924(c) convictions" in light of congressional modifications of this provision in the FIRST STEP Act.

At the time of the March 2019 order in the Marks case, I noted that Judge Larimer did not "have to rely on the US Attorney to do justice in this case now that the FIRST STEP Act has changed the process around judicial consideration of sentence modifications under 18 U.S.C. § 3582(C)(1)(A)."  Reading the March 2019 Marks order, it seemed to me that Judge Larimer had already essentially concluded that Chad Marks had  established "extraordinary and compelling reasons" to warrant a sentencing reduction under § 3582(c)(1)(A).

Fast forward just over 13 months, and now we have a new order in US v. Marks, No. 03-CR-6033L, 2020 WL 1908911 (WDNY April 20, 2020) (available for download below).  This order now runs 39 pages, and here are a few highlights:

The United States Attorney never formally responded to the Court’s Order and suggestion, but the Government’s position is crystal clear from its filings and steadfast opposition to Marks’s motion.  Given the Government’s continued, unyielding characterization of Marks as “a dangerous and violent man,” (Dkt. #503 at 1), and “a liar, perjurer and an obstructer of justice,” id. at 2, who “remains a criminal,” id., and its position that Marks “is not entitled to and does not deserve any more mercy,” id. at 23, it is obvious that the Government will never consent to vacating one of Marks’s § 924(c) convictions, or to any other relief for Marks.  It seems highly unlikely that the Government ever took seriously this Court’s request that it “carefully consider” doing so.

Be that as it may, that avenue of relief is thus foreclosed in this case.  Absent the Government’s consent (or some other independent ground), this Court has no authority to vacate any of Marks’s convictions....  But that does not necessarily mean that Marks is barred from all relief.  In addition to his pro se motion to reduce his sentence, he has also filed a motion, through counsel, to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(I). (Dkt. #498.)  That motion is based in large part on the First Step Act of 2018, which is discussed below....

There is growing authority from district courts throughout the country that find extraordinary and compelling circumstances under circumstances very similar to Marks’s.  First, Marks was subject to the “stacking” of offenses under 18 U.S.C. § 924(c)(1)(C)....  Congress has also stated that “rehabilitation ... alone” may not be considered an extraordinary and compelling reason for reduction of sentence. While that clearly forecloses relief based solely on a defendant’s efforts toward rehabilitation, it implies that rehabilitation is a factor that a court may consider, in conjunction with other relevant circumstances....

[The Government's argument] puts Marks in a “Catch-22” situation.  If he had spent his free time in prison doing little but visiting the weight room, or sitting in his cell reading comic books, the Government would likely point to that as evidence of his incorrigibility or indolence.  Yet having taken consistent, years-long efforts to better his life and the lives of those around him, Marks finds himself accused of a cynical attempt to play on the Court’s sympathies.  The Government is apparently unwilling even to consider the possibility that Marks’s efforts have been sincere.  In the Government’s view, there is no place for redemption.  I do not share that view....

Furthermore, the mere fact that some self-interest may have been involved is hardly remarkable, and is not a reason to disregard Marks’s accomplishments since then. Whatever motives may have initially prompted Marks to undertake rehabilitative efforts, the fact is that he has followed that path for many years, by all appearances to the benefit of himself and others.  If actions speak louder than words, then Marks’s actions have spoken volumes.  To ignore those efforts would only serve to discourage prisoners from making any efforts at rehabilitation, which is presumably not what Congress had in mind when it gave prisoners the ability to seek direct relief from the courts.

It is undisputed that at one point in this case, during plea negotiations, the Government floated the idea of a straight 20-year plea....  Clearly, then, at one time the Government was open to the idea of Marks being released from prison after twenty years.  As explained above, I see no reason why Marks is more dangerous now than he was then.  The evidence before the Court indicates quite the contrary.  The Court is not suggesting that a defendant can refuse a plea offer, and then years later, having received a stiffer sentence than what he was offered, retroactively “accept” the offer.  The point is that the Government’s prior willingness to consider a 20-year plea deal undercuts its present argument that Marks is too dangerous to be released before the end of his current 40-year sentence....

Having weighed the relevant circumstances, in light of the evidence and the law, I conclude that the appropriate relief here is to reduce Marks’s sentence to an aggregate term of twenty years’ imprisonment, followed by an eight-year term of supervised release.... In reaching this conclusion, the Court notes that even twenty years is more than that imposed on Marks’s codefendants, who received sentences of 13 years (Richard Ross, Dkt. #142), 15 years and one month (Nathan Brown, Dkt. #256), and 12 years and seven months (Tommy Hardy, Dkt. #276).  None of those codefendants were minor participants in the offense.  I recognize that those defendants pleaded guilty, while Marks elected to proceed to trial. The point is that his sentence remains a hefty one, and for all the reasons stated above, in my discretion, I find that it is appropriate here.

Download W.D.N.Y. 03-cr-06033 dckt 000536_000 filed 2020-04-20

Though I am quite pleased to see Judge Larimer exercise his discretion to cut two excessive decades off Chad Marks' prison term, I am still put off just a bit by the fact that the court here decided that the arbitrary round number of "20 years" originally proposed by federal prosecutors was the "right" sentence now.  Especially since it appears none of Marks' co-defendants got more than 15.1 years, it still seems that the court is essentially indicating that five extra years in prison for exercising the right to go to trial is fitting even after it is clear that those five extra years are not needed for the defendant's rehabilitation.  For all the virtues of this opinion, it still closes with a not-so-subtle conclusion that it is proper for this defendant to be given an extra half-decade in prison for exercising his constitutional right to put the government to its burden of proof.

That all said, because of time already served and good time credits, I think the new 20-year term for Chad Marks still means he should be released from federak prison relative soon (rather than in the year 2037, as the BOP inmate locator says as of this writing).  Congrats to both Chad and to his lawyers (including, according to a footnote in this new opinion, former federal Judge John Gleeson).

Some (of many) prior related posts on (COVID-free) sentence reductions:

April 21, 2020 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

April 20, 2020

Updating "official" COVID data from federal and Ohio prisons

BOP's COVID-19 Update page, as of April 20, has this report of the latest data on "COVID -19 Cases":

The BOP has 143,705 federal inmates in BOP-managed institutions and 10,225 in community-based facilities.  The BOP staff complement is approximately 36,000.  As of 04/20/2020, there are 497 federal inmates and 319 BOP staff who have confirmed positive test results for COVID-19 nationwide.  Currently, 205 inmates and 33 staff have recovered.  There have been 22 federal inmate deaths and 0 BOP staff member deaths attributed to COVID-19 disease....

Since the release of the Attorney General's original memo to the Bureau of Prisons on March 26, 2020 instructing us to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 1,280 inmates on home confinement.

I have previously expressed concern that these "official" numbers are not a full reflection of the "facts on the ground," and I find especially notable the claim of "0 BOP staff member deaths" given media reports of a confirmed staff death from COVID.  Moverover, whatever the particulars of the BOP accounting above, the extent of the coronavirus spread would only be fully known if we had some details on just how many prisoners and staffers have been tested for the virus.

Helpfully, Ohio is now providing daily updates on COVID-19 Inmate Testing that includes both positive and negative results.  The accounting as of April 20, 2020 is available here, and it is telling and frightening: Positive 3312; Negative 1035.  In other words, among the (large number of) tested prisoners in Ohio, over 75% have tested positive for COVID-19.  Put another way, there are more cofirmed COVID-positive-tested persons in Ohio prisons than the entire total of COVID cases so far confirmed in 22 distinct states (according to Worldometer) and more than in countries ranging from Argentina to Greece to new Zealand to South Africa.

April 20, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (2)

US Sentencing Commission continue to publish helpful data about the pre-COVID federal sentencing world

I keep waiting, impatiently, for the US Sentencing Commission to produce some data or information about federal sentencing realities in our modern COVID world.  I would love to see some data on, for example, how many sentencings are going forward each week given that, in normal times, about an average of 1500 federal sentences are imposed in federal courts every week of the year.  I would also be eager to know if a larger number than usual non-prison sentences are being imposed in those sentencings that are going forward.  And data on sentence reductions motions involving § 3582(c)(1)(A) would also be so very interesting. 

That said, I understand the challenges for the USSC in trying to produce accurate real-time data in even the best of times, and so I will just keep praising the USSC for what they are producing even while I keep hoping for COVID-era data.  Specifically, the USSC merits praise for continuing to produce new reports and data collections and Quick Facts based on its recently completed 2019 Annual Report and Sourcebook of Federal Sentencing Statistics.  Specifically, federal sentencing fans will want to check out these newer item from the USSC website:

OVERVIEW OF FEDERAL CRIMINAL CASES (Published April 16, 2020)  This publication provides a brief, easy-to-use reference on the types of criminal cases handled by federal courts in fiscal year 2019 and the punishments imposed on offenders convicted in those cases.

2019 GEOGRAPHIC SENTENCING DATA (Published April 17, 2020)  These data reports compare fiscal year 2019 federal sentencing statistics for each judicial district, judicial circuit, and state to the nation as a whole.


April 20, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (0)

US Senator Kennedy writes to AG Barr to urge him to "deny any request for early release" to certain notable fraudsters

As reported in this Hill piece, "Sen. John Kennedy (R-La.) called for Ponzi scheme architects who targeted the elderly, such as Bernie Madoff or Robert Allen Stanford, to remain in jail as some prisoners are being released because of coronavirus fears." Here is more:

In a letter to Attorney General William Barr, Kennedy requested the Federal Bureau of Prisons consider the “financial, emotional and physical devastation” prisoners have caused before permitting their early release. The attorney general had instructed the bureau to consider releasing nonviolent criminals who are at a higher risk of contracting the virus because of age or pre-existing medical conditions. “Releasing either of these individuals, or anyone similarly situated, would be an affront to those affected by their evil schemes, and a complete failure in the administration of justice,” Kennedy said in his letter.

Allen Stanford was convicted in 2012 of 13 felony counts and sentenced to 110 years for running a scheme that impacted 18,000 people. Kennedy wrote that he expects the 70-year-old to apply for early release. Madoff, 81, who ran an even larger investment-fraud scheme than Allen Stanford, has pre-existing health issues and has already requested early release.

“Our efforts should be focused on protecting those who protected us; our parents, grandparents, and military veterans who led crime-free lives,” Kennedy added. “Criminals such as Stanford and Madoff who preyed on the elderly should be the last ones to benefit from the change in circumstances COVID-19 has caused.”

The Louisiana senator also requested the Federal Bureau of Prisons publish information about inmates who are released, including their name, last known address, the prison they were released from, their age and their offense. He also called on state attorneys general to publish the same information.

The two-page letter from Senator Kennedy to AG Barr is available at this link. I find it quite interesting that (a) no other Senators signed on this this letter (though I do not know if others were asked, and (b) that Senator Kennedy decided to focus on this letter on big-time fraudsters like Madoff and Stanford without making mention of any other types of offenders like terrorists or murderers.

April 20, 2020 in Impact of the coronavirus on criminal justice, Offense Characteristics, Prisons and prisoners, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (1)

"A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform"

The title of this post is the title of this big new ACLU report spotlighting the persistent problem with racially skewed marijuana enforcement patterns.  This press release reviews the basics of a 100+ page report that I am looking forward to reviewing in depth:

The American Civil Liberties Union today released a new report showing that Black people are 3.64 times more likely than white people to be arrested for marijuana possession despite comparable marijuana usage rates. Additionally, although the total number of people arrested for marijuana possession has decreased in the past decade, law enforcement still made 6.1 million such arrests over that period, and the racial disparities in arrest rates remain in every state.

The reportA Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reformdetails marijuana possession arrests from 2010 to 2018, and updates our unprecedented national report published in 2013, The War on Marijuana in Black and White. The disturbing findings of this new research show that despite several states having reformed marijuana policy over the last decade, far too much has remained unchanged when it comes to racial disparities in arrests.

Key findings include:

  • Law enforcement made more than 6.1 million marijuana-related arrests form 2010-2018. In 2018 alone, there were almost 700,000 marijuana arrests, which accounted for more than 43 percent of all drug arrests. In 2018, law enforcement made more marijuana arrests than for all violent crimes combined.
  • Despite legalization in a number of states, it is not clear that marijuana arrests are trending downward nationally. Arrest rates have actually risen in the past few years, with almost 100,000 more arrests in 2018 than 2015.
  • In every state, and in over 96 percent of the counties examined, Black people were much more likely to be arrested than white people for marijuana possession. Overall, these disparities have not improved. On average, a Black person is 3.64 times more likely to be arrested for marijuana possession than a white person, even though Black and white people use marijuana at similar rates. In 10 states, Blacks were more than five times more likely to be arrested.
  • In states that legalized marijuana, arrest rates decreased after legalization, however racial disparities still remained.

A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform comes at a time when the criminal legal system is overwhelmed by the public health crisis presented by COVID-19 that demands expedited decarcercal action to safeguard the lives of those incarcerated in and employed by jails and prisons. The reforms recommended in this report provide a roadmap for reducing marijuana arrests and criminalization as governors, prosecutors, judges, and other stakeholders across the country grapple with the harms presented by the public health crisis and take steps to release people from jails and prisons.

“Many state and local governments across the country continue to aggressively enforce marijuana laws, disproportionately targeting Black communities,” said Ezekiel Edwards, director of the Criminal Law Reform Project at the ACLU and one of the primary authors of the report. “Criminalizing people who use marijuana needlessly entangles hundreds of thousands of people in the criminal legal system every year at a tremendous individual and societal cost. As a matter of racial justice and sound public health policy, every state in the country must legalize marijuana with racial equity at the foundation of such reform.”

To combat the racial disparities rampant in marijuana-related arrests, the ACLU is calling not only for an end to racialized policing, but also for full legalization of marijuana use and possession and specific measures to ensure legalization efforts are grounded in racial justice. This includes pressing for passage of the MORE Act, which  aims to correct historical injustices of the failed War on Drugs that has terrorized Black communities by decriminalizing marijuana at the federal level, reassessing marijuana convictions, and investment in economically disadvantaged communities.

April 20, 2020 in Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender | Permalink | Comments (0)

A reminder of why "acquitted conduct" sentencing enhancements should be seen as a constitutional abomination

I am only through the first part of the Supreme Court's first opinion in Ramos v. Louisiana, No. 18–5924 (S. Ct. April 20, 2020) (available here), which finally declares that the Sixth Amendment jury trial right, as incorporated against the states, requires unanimous juries for conviction.  I was drawn back to blogging because a passage early in Justice Gorsuch's opinion for the Court reminder me why "acquitted conduct" sentencing enhancements still make me crazy.  Here are the passages from the Ramos opinion slip op. at 3-4) to set the table (emphasis in original):

The Sixth Amendment promises that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”  The Amendment goes on to preserve other rights for criminal defendants but says nothing else about what a “trial by an impartial jury” entails.

Still, the promise of a jury trial surely meant something — otherwise, there would have been no reason to write it down.  Nor would it have made any sense to spell out the places from which jurors should be drawn if their powers as jurors could be freely abridged by statute.  Imagine a constitution that allowed a “jury trial” to mean nothing but a single person rubberstamping convictions without hearing any evidence — but simultaneously insisting that the lone juror come from a specific judicial district “previously ascertained by law.” And if that’s not enough, imagine a constitution that included the same hollow guarantee twice — not only in the Sixth Amendment, but also in Article III.  No: The text and structure of the Constitution clearly suggest that the term “trial by an impartial jury” carried with it some meaning about the content and requirements of a jury trial.

Here is how the second paragraph could and should be modified if (and I hope when) the Supreme Court finally sees it needs to give the jury trial right real meaning by limiting sentencing enhancements based on acquitted conduct:

Still, the promise of a jury trial surely meant something — otherwise, there would have been no reason to write it down.  Nor would it have made any sense to spell out the places from which jurors should be drawn if their powers as jurors could be freely overridden by judges at sentencing.  Imagine a constitution that allowed a “jury trial” to mean nothing but a single judge rotely enhancing sentences without regarding any acquittals — but simultaneously insisting that jurors not be told that acquitted conduct will be used to make guideline calculations “previously ascertained by law.”  And if that’s not enough, imagine a constitution that included the same hollow guarantee twice — not only in the Sixth Amendment, but also in Article III.  No: The text and structure of the Constitution clearly suggest that the term “trial by an impartial jury” carried with it some meaning about the content and requirements of a judge's sentencing acquittals by a jury trial. See generally Blakely v. Washington, 542 U. S. 296 (2004).

I obviously added the citation to Blakely, in part because I continue to by aghast that the Justices have work so hard to avoid confronting the this issue for now 16 years since it handed down the opinion that should have helped bring the ugliness of acquitted conduct enhancement to an end.

April 20, 2020 in Blakely Commentary and News, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

In lengthy split opinion (with interesting splits), Supreme Court holds Sixth Amendment applies to states to require unanimous verdict to convict of serious offense

The Supreme Court this morning handed down a lengthy (surprisingly?) split decision in Ramos v. Louisiana, No. 18–5924 (S. Ct. April 20, 2020) (available here). At issue in Ramos was a set of hlaf-century old SCOTUS precendents in which the Court had held that the Sixth Amendment right to a jury trial, as incorporated against the states, did not require states to adopt a unanimity requirement even for serious cases. Those precedents went up in smoke today, but the break down of votes shows that not all of the Justices were eager to blaze a Sixth Amendment new path:

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II–A, III, and IV–B–1, in which GINSBURG, BREYER, SOTOMAYOR, and KAVANAUGH, JJ., joined, an opinion with respect to Parts II–B, IV–B–2, and V, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and an opinion with respect to Part IV–A, in which GINSBURG and BREYER, JJ., joined. SOTOMAYOR, J., filed an opinion concurring as to all but Part IV–A. KAVANAUGH, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., joined, and in which KAGAN, J., joined as to all but Part III–D.

I am going to need some time (and perhaps a number of posts) to process all that appears here, but for now I can spotlight Justice Gorsuch's notable closing paragraph:

On what ground would anyone have us leave Mr. Ramos in prison for the rest of his life?  Not a single Member of this Court is prepared to say Louisiana secured his conviction constitutionally under the Sixth Amendment.  No one before us suggests that the error was harmless.  Louisiana does not claim precedent commands an affirmance.  In the end, the best anyone can seem to muster against Mr. Ramos is that, if we dared to admit in his case what we all know to be true about the Sixth Amendment, we might have to say the same in some others.  But where is the justice in that?  Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory.  But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.  The judgment of the Court of Appeals is Reversed.

April 20, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

April 19, 2020

Ohio, by testing lots of prisoners, determines that lots and lots and lots of Ohio prisoners have COVID

Just ten days ago, I noted in this post the New York Times piece calling the Cook County jail the "Top U.S. Hot Spot" with 238 inmates and 115 staff members having tested positive for COVID.  Today, because Ohio has made an effort to test all inmates in a few of its prisons, we have a new "hot spot" winner in another corrections facility: the Marion Correctional Institution now has 109 staff and 1828 inmates(!) who have tested positive. The latest official Ohio data from all prisons is chilling, and here are excerpts from "this local article headlined "Almost one in four Ohio coronavirus cases now come from the state’s prisons":

While the DeWine administration has hailed the effectiveness of its social-distancing restrictions to “flatten the curve” of coronavirus infections in Ohio, the disease is escalating among one group of Ohioans who can’t stay at home: prison inmates.

As of late Sunday afternoon, 2,400 of the 11,602 confirmed coronavirus cases in Ohio have been found among inmates in 13 of the state’s 28 prison facilities, including six inmate deaths.  That’s up from 1,441 confirmed cases on Saturday.  Add in the 244 state corrections staffers who have tested positive, and that means about one in four coronavirus cases in Ohio (about 23 percent, to be exact) come from a state prison.

While that ratio is a little less shocking considering that there is wider testing among inmates than the general population, it’s still sobering given that Ohio’s 49,000 or so prisoners make up 0.4 percent of the state’s population of 11.75 million.

Those figures do not include the 88 confirmed cases (38 staff and 50 inmates, six inmates dead) at Federal Correctional Institution Elkton, the lone federal prison in Ohio.  They also don’t include county jail inmate or people behind bars at any level in Ohio who are sick but haven’t been tested.

The problem is particularly dire at the Marion Correctional Institution, where 1,828 inmates have tested positive for the virus as of Sunday.  In addition, 109 staffers at the Marion prison are infected -- one of whom has died....

State officials are moving to test every inmate at the three prisons hardest hit by the disease: Marion, Pickaway Correctional Institution, and the Franklin Medical Center (the state’s prison hospital in Columbus).  The governor also started the process of releasing about 200 inmates who are at a high risk of dying from the virus or other inmates nearing the end of their sentences.

DeWine spokesman Dan Tierney noted that the first prison to report coronavirus cases was the federal Elkton prison, not a state facility. He also said Ohio, as of Friday, was the only state to conduct blanket coronavirus testing at prisons.  “The measures that were put in place delayed the arrival of coronavirus at these facilities,” Tierney said Sunday.  “Now that it’s there, we have to aggressively monitor the situation (and) aggressively deal with this situation -- and that is what we’re doing.”

Critics, including the American Civil Liberties Union of Ohio, have repeatedly called on the governor to release a far greater number of people from state prisons, which have been overcrowded for years....

So many Ohio prison staffers have become ill at Marion that members of the state’s National Guard and State Highway Patrol are taking over some “mission criticial” tasks.  Guard members are also providing medical services at Pickaway.  Sally Meckling, a spokeswoman for the Ohio Civil Service Employees Association, said the Marion, Pickaway, and Franklin Medical Center facilities are “severely understaffed” because of workers out sick.  

April 19, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Ever more disconcerting news and notes from federal prisons' struggle with COVID

It is encouraging that the BOP's COVID-19 Update page, as of midday April 19, is reporting that in the last four weeks "the BOP has placed an additional 1,279 inmates on home confinement."  But that is the only encouraging news I could find about the federal prison system this weekend amidst a whole of worrisome headlines and stories:

I am tempted to call all of these pieces "must-reads," but I would especially encourage everyone to make the time to review the last piece above. It is a lengthy piece from the New York Times described as an "oral history of the first fatal outbreak in the federal prison system, in Oakdale, La."  Much of the reporting is both terrifying and saddening, and here is just a small sample: 

Don Cain, inmate at F.C.I. Oakdale I, via email: I will tell you how I heard the virus got in.  I was told that a staff member from education bragged about going to New York City.  The first death of an inmate was a guy who was in contact with that staff member. I heard that staff member was supposedly in critical condition in the hospital on a ventilator.

Wife of an F.C.C. Oakdale correctional officer, via Facebook Messenger: There’s also a rumor saying an inmate came off the bus as a new intake, and he brought it in.

Mayor Paul: As of last week [the week of March 30], they were still bringing inmates in from other facilities.  It took them about a week to stop those buses.  There was a lot of the ball being passed around with, “It’s not my responsibility, it’s the marshals’ responsibility, it’s not our responsibility, it’s somebody else’s.”  Well, whose responsibility is it to stop this?  I mean, I love the B.O.P. being here and everything, but you think you would have taken some precaution 10 or 14 days earlier to be halfway ready for this thing, especially when you got about 2,000 inmates and about 500 employees.

Correctional Officer 2: I know there was a conversation with the warden.  It was myself and one of the case managers that I used to work with — who tested positive, by the way, he’s been out for a week, week and a half — he questioned the warden and said, “What do you think about this coronavirus, do you think we’re going to have a problem?” And he said: “Oh, no, because we live in the South, and it’s warm here. We won’t have any problems.”  That was his exact words.  Nobody gave us new direction on what we should be doing, how we should be preparing, what to look for, anything....

Ronald Morris [correctional officer, president of the American Federation of Government Employees Local 1007]: You got the director of the B.O.P. saying they’ve been preparing since January, and they have a national stockpile of supplies.  Well, where the hell are those supplies?  Why can’t we get some?  They did send us some national-stockpile N95 masks.  Want to know how many? Two hundred! Two hundred!  They couldn’t afford to give us any more.  They know that we’re just the first institution that’s going to be dealing with this, so they need to hold it to ration it out to other institutions because they know their national stockpile is insufficient to begin with.

Heidi Burakiewicz, lead attorney on the federal class-action lawsuit: What I am constantly hearing from workers at Oakdale is that they’re looking for guidance, and they’re getting no guidance or contradictory guidance, or it’s constantly changing.  I’m outraged when I hear people tell me: “I rode in a van with a sick inmate, and I asked for a mask, and they said: No, I didn’t need it.”  Or: “I sat in a room in the hospital with a sick inmate, and I didn’t even have a mask on.”  Or: “It was only a surgical mask.”  That makes me angry.  That was preventable.  Somebody in this agency needs to take responsibility and start protecting these people.

April 19, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (3)

With data showing significant "overall decline in crime," headline still blares "Some Crimes Are Spiking"

800x-1Among the virtues of blogging for me is a deeper appreciation for the responsibilities and the challenges of effective journalism.  And these days especially, I am disinclined to attack the press.  But I just cannot help but saying "AARRGGHH" in this space while reporting on this notable new Bloomberg piece about crime in cities in the early COVID era. 

The piece details that, generally speaking, crime is down in major cities.  But you would not get that from the piece's headline, which now blares "Some Crimes Are Spiking in America’s Major Cities."  Aggravating headline aside, the piece is an interesting review of original data, and here are excerpts:

Amid empty streets and shuttered shops, crime rates in some of the biggest U.S. cities have dropped -- with a few exceptions. 

Car thefts and store robberies are spiking in some municipalities even as crime overall -- especially violent offenses -- dropped in 10 of the 20 most populated cities, more than halving in San Francisco alone. according to a Bloomberg News analysis of data from 10 major cities.

“It’s just a reflection of reduced opportunities for these kind of events,” said Daniel Nagin, a criminologist and professor of public policy at the H.J. Heinz School of Public Policy and Management at Carnegie Mellon University in Pittsburgh. “In the case of murders, these often occur in public places in bars and things like that. With those kinds of activities shut down there’s less social interaction.”

Car theft is one exception, at least in some places. In New York it’s surging, up 49% for the week ended April 12 as compared to the same period a year earlier. It's risen 53% over the past month and more than 63% year to date. Police have increased patrols in areas of the city where car thefts are common. Car theft was the only major crime to show an increase in Los Angeles, rising 11.3% for the 28 days ending April 11 from the previous period.

Burglaries are also on the rise in New York, up 26% year-to-date as compared to the same period in 2019. In the week ended April 12, they more than doubled in the southern half of Manhattan, where many stores are now unoccupied. Burglaries jumped almost 34% in Denver in March amid a growing number of break-ins at marijuana dispensaries. In Philadelphia, burglaries were down 6.7% overall, with residential break-ins falling 25% as more people stay home, but unoccupied businesses were hit hard, with commercial burglary rising 71%....

Each of the 10 major cities that provided data are showing a decline in rapes and sexual assaults, with San Francisco posting the biggest drop -- more than 50% -- as compared to the same period a year earlier. Kubrin said, however, that these numbers aren't a reliable indicator because the crime is notoriously under-reported, in part because of reluctance by victims to go to the police.

For the most part, murders are on the decline, and in cities showing a rise the numbers are low to begin with. A 25% increase in Austin, for example, is the result of one additional homicide, with the number rising from four to five.... Most cities are showing a decline in assaults, following the trend in other violent-crimes categories.

Prior related posts:

April 19, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)

Advocates pushing back on SBA disqualifying people with any record from business relief

Last week in this post, I noted the effective coverage by Collateral Consequences Resource Center of the U.S. Small Business Administration disqualifying people for small business loans based on any past criminal record during the COVID-19 pandemic.   Now CCRC has this new post, "Bipartisan coalition calls on SBA to roll back record-related restrictions in COVID-19 small business loan programs," and it starts this way:

On April 17 a diverse bipartisan group of civil rights, advocacy, and business organizations, including CCRC, sent a letter to Treasury Secretary Mnuchin and SBA Administrator Carranza expressing concern over the restrictions imposed by the SBA on people with a record of arrest or conviction under two programs recently authorized by Congress in response to the COVID-19 crisis.  The letter points out that these unwarranted restrictions on loan programs intended to aid small businesses and non-profits will have a significant and detrimental impact in communities across the country, and a particularly harsh effect on minority business owners and employees who are disproportionately affected by the criminal legal system as a result of institutional discrimination.  It urges that federal relief be made equitably accessible to all who need it.

The letter, which is available here, includes an appendix detailing how the new rules and policies governing the Payroll Protection Program are more restrictive than those which normally are applied by the SBA.

Prior related post:

April 19, 2020 in Collateral consequences, Impact of the coronavirus on criminal justice, Reentry and community supervision, Who Sentences | Permalink | Comments (1)